THE CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF

SMUGGLING ACTIVITIES ACT, 1974

An Act to provide for preventive detention in certain cases for the
purposes of conservation and augmentation of foreign exchange and
prevention of smuggling activities and for matters connected
therewith.
Whereas violations of foreign exchange regulations and smuggling
activities are having an increasingly deleterious effect on the national
economy and thereby a serious adverse effect on the security of the
State;
And whereas having regard to the persons by whom and the manner
in which such activities or violations are organized and carried on, and
having regard to the fact that in certain areas which are highly
vulnerable to smuggling, smuggling activities of a considerable
magnitude are clandestinely organised and carried on it is necessary
for the effective prevention of such activities and violations to provide
for detention of persons concerned in any manner therewith;
Be it enacted by Parliament in the twentyfifth !ear of the "epublic of
#ndia as follows$ %
1. Short title extent and commencement. ? &'( )his Act may be
called the *onservation of +oreign and Prevention of Smuggling
Activities Act, ',-./
&0( #t extends to the whole of #ndia/
&1( #t shall come into force on such
i
[1]2date3 as the *entral
4overnment may, by notification in the official 4azette, appoint/
2. Definitions . ? #n this Act, unless the context otherwise re5uires, %
&a( ?appropriate Government? means, as respects a detention order
made by the *entral 4overnment or by an officer of the *entral
4overnment or a person detained under such order, the *entral
4overnment, and as respects a detention order made by a State
4overnment or by an officer of a State 4overnment or a person
detained under such order, the State 4overnment;
&b( ?detention order? means an order made under Section 1;
&c( ?foreigner? has the same meaning as in the +oreigners Act, ',.6
&1' of ',.6(;
&d( ?Indian customs waters? has the same meaning as in clause
&07( of Section 0 of the *ustoms Act, ',60 &80 of ',60(;
&e( ?Smuggling?, has the same meaning as in clause &1,( of Section
0 of the *ustoms Act, ',60, and all its grammatical variations and
cognate expressions shall be construed accordingly;
&f( ?State Government?, in relation to a 9nion territory, means the
administrator thereof/
&g( any reference in this Act to a law which is not in force in the
State of :ammu and ;ashmir shall, in relation to that State, be
construed as a reference to the corresponding law, if any, in force in
that State/
3. Power to make orders detaining certain persons . ? &'( )he
*entral 4overnment or the State 4overnment or any officer of the
*entral 4overnment, not below the ran< of a :oint Secretary to that
4overnment, specially empowered for the purposes of this section by
that 4overnment, or any officer of a State 4overnment, not below the
ran< of a Secretary to that 4overnment, specially empowered for the
purposes of this section by that 4overnment, may, if satisfied, with
respect to any person &including a foreigner(, that, with a view to
preventing him from acting in any manner pre=udicial to the
conservation or augmentation of foreign exchange or with a view to
preventing him from %
&i( smuggling goods, or
&ii( abetting the smuggling of goods, or
&iii( engaging in transporting or concealing or <eeping smuggled
goods, or
&iv( dealing in smuggled goods otherwise than by engaging in
transporting or concealing or <eeping smuggled goods, or
&v( harbouring persons engaged in smuggling goods or in abetting
the smuggling of goods,
it is necessary so to do, ma<e an order directing that such person be
detained$
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[2]2Provided that no order of detention shall be made on any of the
grounds specified in this subsection on which an order of detention
may be made under Section 1 of the Prevention of #llicit )raffic in
>arcotic ?rugs and Psychotropic Substances Act, ',77 or under
Section 1 of the :ammu and ;ashmir Prevention of #llicit )raffic in
>arcotic ?rugs and Psychotropic Substances @rdinance, ',77/3
&0( When any order of detention is made by a State 4overnment or by
an officer empowered by a State 4overnment, the State 4overnment
shall, within ten days, forward to the *entral 4overnment a report in
respect of the order/
&1( +or the purposes of clause &8( of Article 00 of the *onstitution, the
communication to a person detained in pursuance of a detention order
or the grounds on which the order has been made shall be made as
soon as may be after the detention, but ordinarily not later than five
days, and in exceptional circumstances and for reasons to be recorded
in writing, not later than fifteen days, from the date of detention/
*omments
% "epresentation % #f the representation has been sent to the 4overnor
directly and not sent to the *hief Secretary that by itself will not
render the representation inconsiderable/ Ifath Sultana v. Govt. of
Tamil Nadu by Addl. Secretary to Govt. ublic !S"# $ept/ ',,0 *ri/A/:
''-- &Bad(/
% ?etention order % ?etenu categorically stated that contraband were
inventoried and duty has been paid % ?etaining authority should have
called for custom clearance card etc/ to verify the fact % failure to do so
vitiates the order/ %enugopal? v. State of Tamil Nadu. ',,' *ri/ A/:
876 &Badras(
% Cxpression %engaging% in clause &iii( of subsection &'( of Section 1
has no relation to the number of pre=udicial activities indulged in by
the detenu/ &egh'ibhai . (hanushabi v. State of &aharashtra and
another. ',,. *ri/ A/: 0'.- D ',,. &0( Bom *" 'E1 &Bom(/
% *onfessional statement % @rder of detention % "etraction % After
being alive to the fact of retraction, the detaining authority can still
arrive at a sub=ective satisfaction to prematurely detain accused/ Arun
)umar Soni v. *nion of India. %',,0 *ri/A/:/ 181' &Bad(
% ?etention @rder % *onfirmation of order after expiry of statutory%
period of 1 months vitiates detention/ Tapan Saha v. *nion of India
and others. ',,1 *ri/A/: '088 D ',,1 &#( *rimes 867 &?elhi(
% ?etention @rder % Passing% of after '. months after% date of incident
% Cxcuse of procedural delay is no ground% to =ustify delay/ Satnam
Singh v. *nion of India and others. ',,0 *ri/A/: 1,6' D ',,0 &0(
*rimes% ''11 &?elhi(
% ?etention % Process of case by high officials at preliminary stage
before sending the mater to detaining authority is not illegal/ ).T.
Sainaba v. State of )erala and others. ',,1 *ri/A/: 0E'- &;er(
% #nterview with counsel % 4rant% of permission with certain
restrictions % >o pre=udice caused by conditions and restrictions
imposed/ +umana (egum v. Govt. of A.. and another. ',,0 *ri/A/:/
18'0 &A/P(
% ?etention% order % *an be passed against a person already in =udicial
custody/ Abdul +ahiman and others. vs *nion of India and others.
',,0 *ri/A/: 10-- &;ant/(
% ?etention % *ompetent Authority % :urisdiction % *annot be
challenged at predetention stage/ $arshan Singh v. *nion Territory,
New $elhi. %',,8 *ri/A/: '0-,/ &PFG(
% ?etention % ?etenu not able to read his own statement in Cnglish %
4rounds cannot be deemed to have been communicated to him %
?etention order bad/ Sumhadi (in &aorais, Indonesian National v.
*nion of India? and others ',,0 *ri/A/:/ 0.E, &4u=(%%%%%%%%%%%%% %%%
% Smuggling activities % An improper import or its attempt would brand
the concerned activity as the HSmuggling ActivityI/ A. &ohammed v.
State of )erala. ',,8 *ri/A/: '766 &;er/(
4. Execution of detention orders . ? A detention order may be
executed at any place in #ndia in the manner provided for the
execution on warrants of arrest under the *ode of *riminal Procedure,
',-1 &0 of ',-.(/
. Power to regulate place and conditions of detention . ? Cvery
person in respect of whom a detention order has been made shall be
liable %
&a(% to be detained in such place under such conditions including
conditions as to maintenance, interviews or communication with
others, discipline and punishment for breaches of discipline, as the
appropriate 4overnment may, by general or special order, specify;
and
&b(% to be removed from one place of detention to another place of
detention, whether within the same State or in another State by
order of the appropriate 4overnment$
Provided that no order shall be made by a State 4overnment under
clause &b( for the removal of a person from one State to another State
except with the consent of the 4overnment of that other State/
!". #rounds of detention se$era%le. ? Where a person has been
detained in pursuance of an order of detention under subsection &'(
of Section 1 which has been made on two or more grounds, such order
of detention shall be deemed to have been made separately on each of
such grounds and accordingly %
&a(% such order shall not be deemed to be invalid or inoperative
merely because one or some of the grounds is or are %
&i(% vague,
&ii(% nonexistent,
&iii(% not relevant,
&iv(% not connected or not proximately connected with such
person, or
&v(% invalid for any other reason whatsoever,
and it is not therefore possible to hold that the 4overnment or officer
ma<ing such order should have been satisfied as provided in sub
section &'( of Section 1 with reference to the remaining ground or
grounds and made the order of detention;
&b(% the 4overnment or officer ma<ing the order of detention shall
be deemed to have made the order of detention under the said sub
section &'( after being satisfied as provided in that subsection with
reference to the remaining ground or grounds/
&. Detention orders not to %e in$alid or inoperati$e on certain
grounds. ? >o detention order shall be invalid or inoperative merely
by reason %
&a(
%that the person to be detained thereunder is outside the limits of
the territorial =urisdiction of the 4overnment or the officer ma<ing
the order of detention, or
&b(% that the place of detention of such person is outside the said
limits/
'. Powers in relation to a%sconding persons. ? &'( #f the
appropriate 4overnment has reason to believe that a person in respect
of whom a detention order has been made has absconded or is
concealing himself so that the order cannot be executed, that
4overnment may %
&a(% ma<e a report in writing of the fact to a Betropolitan Bagistrate
or a Bagistrate of the first class having =urisdiction in the place
where the said person ordinarily resides; and thereupon the
provisions of Sections 70, 71, 7. and 78 of the *ode of *riminal
Procedure, ',-1 &0 of ',-.(, shall apply in respect of the said
person and his property as if the order directing that he be detained
were a warrant issued by the Bagistrate;
&b(% by order notified in the official 4azette direct the said person to
appear before such officer, at such place and within such period as
may be specified in the order; and if the said person fails to comply
with such direction, he shall, unless he proves that it was not
possible for him to comply therewith and that he had, within the
period specified in the order, informed the officer mentioned in the
order of the reason which rendered compliance therewith impossible
and of his whereabouts, be punishable with imprisonment for a term
which may extend to one year or with fine or with both/
&0( >otwithstanding any thing contained in the *ode of *riminal
Procedure, ',-1 &0 of ',-.(, every offence under clause &b( of sub
section &'( shall be cognisable/
(. "d$isor) *oards. ? +or the purposes of subclause &a( of clause
&.(, and subclause &c( of clause &-( of Article 00 of the *onstitution, %
&a(% the *entral 4overnment and each State 4overnment shall,
whenever necessary, constitute one or more Advisory Boards each
of which shall consist of a *hariman and two other persons
possessing the 5ualification specified in subclause &a( of clause &.(
of Article 00 of the *onstitution;
&b(% save as otherwise provided in Section ,, the appropriate
4overnment shall, within five wee<s from the date of detention of a
person under a detention order ma<e a reference in respect thereof
to the Advisory Board to ma<e the report under subclause &a( of
clause &.( of Article 00 of the *onstitution;
&c(% the Advisory Board to which a reference is made under clause
&b( shall after considering the reference and the materials placed
before it and after calling for such further information as it may
deem necessary from the appropriate 4overnment or from any
person called for the purpose through the appropriate 4overnment
or from the person concerned, and if, in any particular case, it
considers it essential so to do or if the person concerned desires to
be heard in person, after hearing him in person, prepare its report
specifying in a separate paragraph thereof its opinion as to whether
or not there is sufficient cause for the detention of the person
concerned and submit the same within eleven wee<s from the date
of detention of the person concerned;
&d(% when there is a difference of opinion among the members
forming the Advisory Board the opinion of the ma=ority of such
members shall be deemed to be the opinion of the Board;
&e(% a person against whom an order of detention has been made
under this Act shall not be entitled to appear by any legal
practitioner in any matter connected with the reference to the
Advisory Board, and the proceedings of the Advisory Board and its
report, excepting that part of the report in which the opinion of the
Advisory Board is specified, shall be confidential;
&f(% in every case where the Advisory Board has reported that there
is in its opinion sufficient cause for the detention of a person, the
appropriate 4overnment may confirm the detention order and
continue the detention of the person concerned for such period as it
thin<s fit and in every case where the Advisory Board has reported
that there is in its opinion no sufficient cause for the detention of the
person concerned, the appropriate 4overnment shall revo<e the
detention order and cause the person to be released forthwith/
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[3]+,. -ases in which and circumstances under which persons
ma) %e detained for periods longer than three months without
o%taining the opinion of "d$isor) *oard. ? %&'( >otwithstanding
anything contained in this Act, any person &including a foreigner( in
respect of whom an order of detention is made under this Act at any
time before the
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[4]21'st day of :uly, ',,13 may be detained without
obtaining, in accordance with the provisions of subclause &a( of
*lause &.( of Article 00 of the *onstitution, the opinion of an Advisory
Board for a period longer than three months but not exceeding six
months from the date of his detention, where the order of detention
has been made against such person with a view to preventing him
from smuggling goods or abetting the smuggling of goods or engaging
in transporting or concealing or <eeping smuggled goods and the
*entral 4overnment or any @fficer of the *entral 4overnment, not
below the ran< of an Additional Secretary to that 4overnment,
specially empowered for the purposes of this section by that
4overnment, is satisfied that such person, %
&a(% smuggles or is li<ely to smuggle goods into, out of or through
any area highly vulnerable to smuggling; or
&b(% abets or is li<ely to abet the smuggling of goods into, out of or
through any area highly vulnerable to smuggling; or
&c(% engages or is li<ely to engage in transporting or concealing or
<eeping smuggled goods in any area highly vulnerable to smuggling,
and ma<es a declaration to that effect within five wee<s of the
detention of such person/
-xplanation '/ % #n this subsection, %area highly vulnerable to
smuggling% means, %
&i(% the #ndian customs waters, contiguous to
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[5]2the States of 4oa,
4u=arat, ;arnata<a, ;erala, Baharashtra, )amil >adu and the 9nion
territories of ?aman and ?iu and Pondicherry3;
&ii(% the inland area fifty <ilometres in width from the coast of #ndia
falling within the territories of
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[6]2the States of 4oa, 4u=arat
;arnata<a, ;erala, Baharashtra, )amil >adu and the 9nion
territories of ?aman and ?iu and Pondicherry3;
&iii(% the inland area fifty <ilometres in width from the #ndia
Pa<istan border in the State of 4u=arat, :ammu and ;ashmir, Pun=ab
and "a=asthan;
&iv(% the customs air port of ?elhi; and
&v(% such further or other #ndian customs waters, or inland area not
exceeding one hundred <ilometres in width from any other coast or
border of #ndia, or such other customs station, as the *entral
4overnment may, having regard to the vulnerability of such waters,
area or customs station, as the case may be, to smuggling, by
notification in the official 4azette, specify in this behalf/
-xplanation 0/ % +or the purposes of Cxplanation ', %customs airport%
and %customs station% shall have the same meaning as in clauses &'E(
and &'1( of Section 0 of the *ustoms Act, ',60 &80 of ',60(,
respectively/
&0( #n the case of any person detained under a detention order to
which the provisions of subsection &'( apply, Section 7 shall have
effect sub=ect to the following modifications, namely$ %
&i(% in clause &b(, for the words %shall, within five wee<s%, the words
%shall, within four months and two wee<s% shall be substituted;
&ii(% in clause &c(, %
&'( for the words %the detention of the person concerned%, the
words %the continued detention of the person concerned% shall
be substituted;
&0( for the words %eleven wee<s% the words %five months and
three wee<s% shall be substituted%;
&iii(% in clause &f(, of the words %for the detention%, at both the
places where they occur, the words %for the continued detention%
shall be substituted/
*omments
% *ontinued detention % @rder of declaration under%% section , is to be
sent along with original order/ .awabi Sayed Arif Sayed .anif v. /
.mingliana and others. ',,1 *ri/A/: '-0D A#" ',,1 S* 7'E D ',,1&#(
S** '61D',,0&6( :) '60D',,0 &0( Scale -,6&S*(
% ?etention % >o statutory period specified under section ,&'( for
serving declaration to the detenues % ?etention not vitiated due to
delay in communication of declaration under Section ,/ .awabi Sayed
Arif Sayed .anif v. / .mingliana and others. ',,1 *ri/A/: '-0 D A#"
',,1 S* 7'E D ',,1&'(S** '61 D ',,0&6( :) '60 D ',,0&0( Scale
-,6&S*(
1.. /aximum period of detention. ? )he maximum period for
which any person may be detained in pursuance of any detention order
to which the provisions of Section , do not apply and which has been
confirmed under *lause &f( of Section 7 shall be one year from the
date of detention and the maximum period for which any person may
be detained in pursuance of any detention order to which the
provisions of Section , apply and which has been confirmed under
clause &f( of Section 7 read with subsection &0( of Section , shall be
two years from the date of detention$
Provided that nothing contained in this section shall affect the power of
the appropriate 4overnment in either case to revo<e or modify the
detention order at any earlier time/
11. 0e$ocation of detention orders. ? &'( Without pre=udice to the
provisions of Section 0' of the 4eneral *lauses Act, '7,- &'E of '7,-(
a detention order may, at any time, be revo<ed or modified %
&a(% notwithstanding that the order has been made by an officer of a
State 4overnment, by that State 4overnment or by the *entral
4overnment;
&b(% notwithstanding that the order has been made by an officer of
the *entral 4overnment or by a State 4overnment, by the *entral
4overnment/
&0( )he revocation of a detention order shall not bar the ma<ing of
another detention order under Section 1 against the same person/
12. 1emporar) release of persons detained. ? &'( )he *entral
4overnment may, at any time, direct that any person detained in
pursuance of a detention order made by that 4overnment or an officer
subordinate to that 4overnment or by a State 4overnment or by an
officer subordinate to a State 4overnment, may be released for any
specified period either without conditions or upon such conditions
specified in the direction as that person accepts, and may, at any time,
cancel his release/
&'A( A State 4overnment may, at any time, direct that any person
detained in pursuance of a detention order made by that 4overnment
or by an officer subordinate to that 4overnment may be released for
any specified period either without conditions or upon such conditions
specified in the direction as that person accepts, and may, at any time,
cancel his release/
&0( #n directing the release of any person under subsection &'( or
subsection &'A(, the 4overnment directing the release may re5uire
him to enter into a bond with sureties for the due observance of the
conditions specified in the direction/
&1( Any person released under subsection &'( or subsection &' A(
shall surrender himself at the time and place, and to the authority,
specified in the order directing his release or cancelling his release, as
the case may be/
&.( #n any person fails without sufficient cause to surrender himself in
the manner specified in subsection &1(, he shall be punishable with
imprisonment for a term which may extend to two years, or with fine,
or with both/
&8( #f any person released under subsection &'( or subsection &'A(
fails to fulfil any of the conditions imposed upon him under the said
subsection or in the bond entered into by him, the bond shall be
declared to be forfeited and any person bound ther by shall be liable to
pay the penalty thereof/
&6( >otwithstanding anything contained in any other law and save an
otherwise provided in this section, no person against whom a
detention order made under this Act is in force shall be released
whether on bail or bail bond or otherwise/
12!". Special pro$isions for dealing with emergenc). ? &'(
>otwithstanding anything contained in this Act or any rules of natural
=ustice, the provisions of this section shall have effect during the
period of operation of the Proclamation of Cmergency issued under
clause &'( of Article 180 of the *onstitution of the 1rd day of
?ecember, ',-', or the Proclamation of Cmergency issued under that
clause on the 08th day of :une, ',-8, or a period of twenty four
months from the 08th day of the :une, ',-8, whichever period is the
shortest/
&0( When ma<ing an order of detention under this Act against any
person after the commencement of the *onservation of +oreign
Cxchange and Prevention of Smuggling Activities &Amendment( Act,
',-8, the *entral 4overnment or the State 4overnment or, as the case
may be, the officer ma<ing the order of detention shall consider
whether the detention of such person under that Act is necessary for
dealing effectively with the emergency in respect of which the
Proclamations referred to in subsection &'( have been issued
&hereinafter in this section referred to as the emergency( and if, on
such consideration, the *entral 4overnment or the State 4overnment
or, as the case may be, the officer is satisfied that it is necessary to
detain such person for effectively dealing with the emergency, that
4overnment or officer may ma<e% a declaration to that effect and
communicate a copy of the declaration to the person concerned$
Provided that where such declaration is made by an officer, it shall be
reviewed by the appropriate 4overnment within fifteen days from the
date of ma<ing of the declaration and such declaration shall cease to
have effect unless it is confirmed by that 4overnment, after such
review, within the said period of fifteen days/
&1( )he 5uestion whether the detention of any person in respect of
whom a declaration has been made under subsection &0( continues to
be necessary for effectively dealing with the emergency shall be
reconsidered by the appropriate 4overnment within four months from
the date of such declaration and thereafter at intervals not exceeding
four months, and if, on such reconsideration, it appears to the
appropriate 4overnment that the detention of the person is no longer
necessary for effectively dealing with the emergency, that 4overnment
may revo<e the declaration/
&.( #n ma<ing any consideration, review or reconsideration under sub
section &0( or &1(, the appropriate 4overnment or officer may, if such
4overnment or officer considers it to be against the public interest to
do otherwise, act on the basis of the information and materials in its or
his possession without disclosing the facts or giving an opportunity of
ma<ing a representation to the person concerned/
&8( #t shall not be necessary to disclose to any person detained under
a detention order to which the provisions of subsection &0( apply, the
grounds on which the order has been made during the period the
declaration made in respect of such person under that subsection is in
force, and, accordingly, such period shall not be ta<en into account for
the purposes of subsection &1( of Section 1/
&6( #n the case of every person detained under a detention order to
which the provisions of subsection &0( apply, being a person in
respect of whom a declaration has been made thereunder, the period
during which such declaration is in force shall not be ta<en into
account for the purpose of computing %
&i(% the periods specified in clauses &b( and &c( of Section 7;
&ii(% the periods of %one year% and %five wee<s% specified in sub
section &'(, the period of %one year% specified in subsection &0( &i(,
and the period of %six months% specified in subsection &1(, of
Section ,/
13. Protection of action taken in good faith. ? >o suit or other
legal proceeding shall lie against the *entral 4overnment or a State
4overnment, and no suit, prosecution or other legal proceedings shall
lie against any person, for anything in good faith done or intended to
be done in pursuance of this Act/
14. 0epeal. ? )he Baintenance of #nternal Security &Amendment(
@rdinance, ',-. &'' of ',-.( shall, on the commencement of this Act,
stand repealed and accordingly the amendments made in the
Baintenance of #nternal Security Act, ',-' &06 of ',-'( by the said
@rdinance shall, on such commencement, cease to have effect
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